Monday, March 23, 2015

Press Release | Police Must Respect Constitutional Rights and Uphold the Rule of Law

Sunday, 22 March 2015 10:39am

The
Malaysian Bar is aghast at the spate of arrests and detentions in the
wake of various public rallies held in Kuala Lumpur over the past two
weeks.

The
arrests and detentions were reported to have been made pursuant to
Section 9(5) of the Peaceful Assembly Act 2012, which penalises the
organisers of peaceful assemblies with a fine of up to RM10,000 if they
fail to provide the specified 10 days’ notice; and Section 143 of the
Penal Code, which imposes a punishment of a term of up to six months’
imprisonment, or a fine, or both, on whoever is “a member of an unlawful
assembly (as defined in Section 142 of the Penal Code).

It
has been reported that the following three persons were arrested to
assist the police in their investigations into the public rallies, and
subsequently released without detention on remand:

(1)Saifullah Zulkifli: Politician, arrested on 7 March 2015;

(2)YB Rafizi Ramli: Member of Parliament for Pandan, arrested on 10 March 2015; and

(3)S Jayathas: Human rights activist, arrested on 17 March 2015.

It
has been also reported that the following six persons were arrested to
assist the police in their investigations into the public rallies, and
subsequently detained on remand under Section 117(ii) of the Criminal
Procedure Code before being released:

(1)YB
Nik Nazmi Nik Ahmad: Selangor State Government Executive Council
Member, arrested on 8 March 2015 and detained on remand for three days;

(2)Fariz Musa: Politician, arrested on 10 March 2015 and detained on remand for two days;

(3)Mohd Fakhrulrazi Mohd Mokhtar: Politician, arrested on 10 March 2015 and detained on remand for one day;

(4)Adam Adli: Student activist, arrested on 14 March 2015 and detained on remand for three days;

(5)Mandeep
Singh: Staff member of a non-governmental organisation, arrested on 14
March 2015 and detained on remand for three days; and

(6)YB Teo Kok Seong: Member of Parliament for Rasah, arrested on 14 March 2015 and detained on remand for one day.

It
has been further reported that YB Chua Tian Chang (commonly known as YB
Tian Chua), Member of Parliament for Batu, was arrested on 20 March
2015 under Section 143 of the Penal Code, and released on 21 March 2015
when the police failed to obtain a remand order under Section 117 of the
Criminal Procedure Code.

The
constitutional right to assemble peaceably and without arms is
guaranteed under Article 10(1)(b) the Federal Constitution, subject to
limited restrictions “in the interest of the security of the Federation
or any part thereof, or public order”, under Article 10(2)(b). The
Court of Appeal in Nik Nazmi Nik Ahmad v Public Prosecutor [2014] 4 CLJ 944 unanimously reaffirmed this constitutional liberty as a fundamental right of all Malaysians.

It is therefore untenable that the police have decided to ignore the Court of Appeal’s decision in the Nik Nazmi Nik Ahmad
case, and have arrested, and in several instances also detained on
remand, the persons listed above. The decision of the Court of Appeal
has a far-reaching impact on all forms of restrictions or limitations
under our laws on the constitutionally safeguarded right to freedom of
assembly.

A
decision of the Court of Appeal, until reversed by the Federal Court,
remains enforceable and binding. It is not open to anyone, including
the police, to ignore the decision even if an appeal or a review of the
decision is pending. As a law enforcement agency, the police must
respect the law at all times, and not only when they wish or choose to
do so. The police cannot be a law unto themselves.

Moreover,
there appears to have been no reason for the police to arrest S
Jayathas, YB Nik Nazmi Nik Ahmad, Fariz Musa, Mohd Fakhrulrazi Mohd
Mokhtar, YB Teo Kok Seong and YB Tian Chua, as it was reported that they
had voluntarily agreed to present themselves for questioning and to
assist in the investigations. If the investigations could not be
completed on the day they presented themselves, they should have been
asked to return the next day, or on a date that was mutually agreed
upon. Arresting persons who are willing to cooperate in investigations
is a misuse of the power of arrest.

In
addition, there appears to have been no basis whatsoever for the
police to have sought remand orders for detention in the cases of YB Nik
Nazmi Nik Ahmad, Fariz Musa, Mohd Fakhrulrazi Mohd Mokhtar, Adam Adli,
Mandeep Singh and YB Teo Kok Seong. A remand order — could lead to a
detention of up to 14 days — is to enable the police to complete
investigations, and not for the purpose of commencing investigations.
It is imperative that the police show that they have pursued
investigations diligently. The police cannot detain persons on remand
in order to conduct investigations at their leisure. Further, a remand
order should not be sought in the absence of a reasonable belief that
the accused persons would tamper with or destroy evidence that is
material to the investigations, harass potential witnesses, or pose a
flight risk.

A
remand order is a grave and harsh deprivation of an accused person’s
liberty. It is not an order that the police should lightly or routinely
seek unless it is fully justifiable. The police should certainly not
seek a remand order to harass and intimidate accused persons. Such
conduct would be unprofessional, deplorable and unlawful.

The
Malaysian Bar is deeply concerned by the manner in which the police
have chosen to exercise their powers to arrest and detain persons
exercising their constitutional right to assemble peaceably. We urge
the police to exercise restraint, and to respect constitutional rights
and to uphold the rule of law.

Number of Visits

By 15th June 2008, we 1,328,396 visits...and by 2010, we would have easily crossed the 2 million mark..We started counting visits again in May 2010, and soon we expect to be crossed the million mark yet again. As such, we have had over 3 million visits to our site. On an average, we have about 700-750 visits per day.
Thank you all for your support and encouragement..

I believe in the freedom of expression - and everyone is free to use, reproduce, quote, copy and circulate, etc... materials published here. Please credit the source: http://charleshector.blogspot.com/.

For those of you who do have Blogs/Websites, it would be good if you could add a link to CHARLES HECTOR Blog. Please do promote the BLOG.

Anonymous comments or those containing profanities and obscenities (or irrelevant matters) will be rejected.